Case BriefsHigh Courts

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and N.M. Jamdar, J. allowed a writ petition filed by a commissioning mother of a surrogate child and held that she was entitled to maternity leave.

Unable to bear a second child, the petitioner along with her husband, chose the route of surrogacy. The surrogate mother gave birth to a baby girl on 5-11-2012. With reference to the expected date of delivery, the petitioner sought maternity leave to take care of the surrogate child. The same was denied to her on the ground that the Leave Rules and the policy governing the Rules did not permit maternity leave for a surrogate child.

The petitioner challenged the said denial by way of the present petition. She was represented by Nikhilesh Pote, Advocate. While, M.M. Pabale, Additional Government Pleader, appeared for the State.

The High Court was of the opinion that the issue was no longer res Integra. It was noted that in Hema Vijay Menon v. State of Maharashtra2015 SCC OnLine Bom 6127, the Bombay High Court relying on the decision of the Delhi High Court in Rama Pandey v. Union of India, 2015 SCC OnLine Del 10484, had held that even in case of birth by surrogacy, the parents who have lent the ova and the sperm would be entitled to avail leave. The mother being entitled to maternity leave and the father paternity leave.

Notably, in Hema Vijay Menon, the Bombay High Court observed: “A commissioning mother like the petitioner would have the same rights and obligations towards the child as the natural mother. Motherhood never ends on the birth of the child and a commissioning mother like the petitioner cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy. Though the petitioner did not give birth to the child, the child was placed in the secured hands of the petitioner as soon as it was born. A newly born child cannot be left at the mercy of others. Maternity leave to the commissioning mother like the petitioner would be necessary. A newly born child needs the attention of the mother. There is a tremendous amount of learning that takes place in the first year of the baby’s life, the baby learns a lot too. Also, the bond of affection has to be developed. A mother, as already stated hereinabove, would include a commissioning mother or a mother securing a child through surrogacy. Any other interpretation would result in frustrating the object of providing maternity leave to a mother, who has begotten the child.

Following the said decision, the Court held that the petitioner was entitled to maternity leave for the child born through surrogacy. It was ordered that various leaves availed of by the petitioner be converted to maternity leave as prayed for by the petitioner.[Pooja Jignesh Doshi v. State of Maharashtra, 2019 SCC OnLine Bom 1433, decided on 03-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Rajiv Sharma J., decided that the proviso second of the Fundamental Rule 153 of the U.P. Fundamental Rules be struck down as it declines to grant maternity leave to a woman for her third child.

In accordance to the facts of the case, the petitioner was denied for maternity leave on the basis that she had already two living children and she cannot avail the same for her third child, which is in consonance to the second proviso of Fundamental Rule 153 the Financial Hand Book of the U.P. Fundamental Rules.

The High Court on an analysis of the stated Rule along with the Maternity Act, 1961 and Article 42 of the Constitution of India decided that, Fundamental Rule 153 is unconstitutional and there is a dire need to strike it down as neither does the rule supports the spirit of Article 42 nor does it stands in conformity with Section 27 of the Maternity Benefit Act, 1961. Hence, the petitioner in the present matter was provided with maternity leave for her third child. [Urmla Masih v. State of Uttarakhand,2018 SCC OnLine Utt 717, dated 30-07-2018]

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Vide notification dated 29th March, 2018, the Central Government has specified for the purposes of clause (iv) of the Explanation to sub-section (2) of Section 2-A of the Payment of Gratuity Act, 1972 (39 of 1972), that the total period of maternity leave in the case of a female employee shall not exceed twenty-six weeks.

Ministry of Labour and Employment

[No. S-420121/02/2016-SS-II]

Case BriefsHigh Courts

Chhattisgarh High Court: While disposing a writ concerning denial of grant of maternity leave to a mother who has begotten  a child through surrogacy under Rule 38 of the Chhattisgarh Civil Services (Leave) Rules, 2010 the learned Single Judge Bench of Sanjay K. Agrawal, J. held that the State Government cannot differentiate between a biological mother and a mother who begets a child through surrogacy as right to life under Article 21 of Constitution of India includes the right to motherhood and also the right of every child to full development, thereby setting aside the  impugned order rejecting the application of the petitioner for grant of maternity leave  and  held that the petitioner is entitled for maternity leave as provided under Rule 38 of the 2010 Rules.

In the present case the petitioner surrogate mother was a lecturer working in the government girls higher secondary school, Utai. The petitioner was denied maternity leave by the Education Department on the ground that the concept of providing maternal leave to mother who begets child through surrogacy is not mentioned in the Chhattisgarh Civil Services (Leave) Rules, 2010. The Court was not satisfied with the said argument and observed by relying on the case of B. Shah v. Presiding officer Labour Court, (1977)4 SCC 384  that interpretation of beneficial piece of legislation which is intended to achieve social justice must be construed beneficially.

The Court also relied on various case laws such as Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 and the rule of dynamic construction as explained by the eminent author Justice G.P Singh in Principles of Statutory Interpretation, observed that statutes are to be interpreted dynamically according to the change in society and societal conditions, unless and until the contrary intention appears from the statute. [Sadhna Agrawal v. State of Chhattisgarh, 2017 SCC OnLine Chh 19, decided on 3/01/2017]

Case BriefsHigh Courts

High Court of Uttaranchal: The Court while hearing a petition relating to the issue of maternity leave not been granted to the petitioner since she was a contractual employee working under the respondent, the Bench comprising of Rajiv Sharma and Alok Singh, JJ., observed that even though the petitioner is appointed on a contractual basis she is entitled to maternity leave with full pay as per Section 5 of the Maternity Benefit Act read in conjunction with Rule 153 of U.P. Fundamental Rules. The petitioner has moved the court as her maternity leave was not sanctioned. However, the case of the respondents is that since, the petitioner was appointed on contractual basis, and working as a Lecturer (Sociology) hence, she was not entitled for maternity leave.

The Court rejecting the contentions of the respondent observed that in a welfare State it is the obligation of the State to ensure the creation and sustaining of the conditions congenial to good health therefore maternity leave, being social insurance benefit, is a key for maternal and child health and family support hence a employer should be considerate and sympathetic toward a working women and grant maternity leave with full pay for 180 days, even if she is working on contractual basis, ad hoc/tenure or temporary basis under the mandate of under Article 21 of the Constitution read with Article 42. The Court further stated that a female government employee is also entitled to Child Care Leave (CCL) for a child below 18 years of age, as per the recommendation of the 6th Central Pay Commission, of 730 days during the entire service. The Court also highlighted the provisions of paternity leave for a male government servant for a period of at least three weeks to enable the father to look after the mother and child. [Dr. Deepa Sharma v. State of Uttarakhand, 2016 SCC OnLine Utt 2015, decided on 15th December, 2016]

High Courts

Kerala High Court: Dealing with an urgent issue as to whether a ‘biological mother’ is entitled to the maternity leave in a case where she has obtained the baby through surrogacy, a bench of D.S. Naidu J. gave a landmark judgment in favour of the genetic/biological mother. The Court held that a mother who has obtained the baby through surrogacy is entitled to all the benefits an employee could have on post-delivery, i.e. the child specific statutory benefits.

In the instant case, the respondents refused to grant maternity leave to the petitioner (an employee in the Government of Kerala undertaking) to take care of the new born on the ground that the Kerala Livestock Development Board Ltd Rules and Regulations, 1993 only provide maternity leave envisaged under ‘normal circumstances’. The learned Counsel for the petitioner Dr. Thushara James contended that “motherhood does not end with the delivery of a baby, but continues, with more vigour, through the process of child rearing, which is an equally difficult task”. The Counsel also referred various international treaty obligations and conventions to which India is signatory and contended that “when the municipal law is silent, the international covenants and treaties can be made applicable”. She further contended that “provision of the Maternity Benefit Act, 1961 does not maintain any distinction between maternity by way of natural process and by way of ART”. The learned Senior Counsel for the respondent Sumathi Dhandapani contended that “in the face of its own Regulations having statutory force, it is not bound by the provisions of the Maternity Benefit Act. Rule 50 of the Staff Rules and Regulations does not provide for leave in the case of surrogacy”.

The Court examined the statutory scheme of the Maternity Benefit Act, 1961 and noted that “there cannot be any discrimination regarding the genetic mother in extending the statutory benefits to the extent they are applicable”. The Court also examined the international treaties and conventions and noted that “welfare of the child shall be the primary consideration”. The Court went through the decision of Madras High Court in Kalaiselvi v. Chennai Port of Trust 2013 SCC OnLine Mad 811, where it was held that a women employee was entitled to avail ‘child care leave’ even in case where she got a child through an arrangement of surrogacy, and held that “though the petitioner has not undergone any pre-natal phase, however, from the day one, after the delivery , the petitioner is required to be treated as the mother with the new born, and thus without discrimination, the petitioner is entitled to all the benefits that accrue to an employee after the delivery”. P. Geetha v. The Kerala Livestock Development Board Ltd., 2015 SCC OnLine Ker 71, decided on 06-01-2015.